United States v. Witzlib

United States District Court, E.D. Wisconsin

May 18, 2016

UNITED STATES OF AMERICA Plaintiff,v.BODIE WITZLIB Defendant.

DECISION AND ORDER

LYNN
ADELMAN DISTRICT JUDGE

Defendant
Bodie Witzlib pleaded guilty to manufacturing and dealing
explosive materials without a licence, 18 U.S.C. §§
842(a)(1) & 844(a), and on January 9, 2015, I sentenced
him to time served (about 18 months) followed by two years of
supervised release. The Seventh Circuit affirmed
defendant’s conviction on direct appeal. United
States v. Witzlib, 796 F.3d 799 (7th Cir.
2015), cert. denied, 136 S.Ct. 919 (2016). On March
23, 2016, defendant filed a motion for early termination of
his supervised release. I directed the government to respond
and permitted defendant to reply. I now deny the motion.

I.
BACKGROUND

Defendant’s
aunt and uncle reported to the Germantown, Wisconsin Police
Department that defendant was making M-80s in the basement of
his grandmother’s house. He lacked the federal license
required for this activity. As the Seventh Circuit indicated,
“Illegal manufacture of M-80s is at once common and
highly dangerous because of the explosive potential of the
pyrotechnic flash powder that is their principal
ingredient.” Witzlib, 796 F.3d at 800. The
aunt further indicated that defendant held
“anti-government beliefs, ” was unpredictable,
and did not take the medications prescribed for his
“mental health issues.” Id. at 801. The
police searched the basement with the grandmother’s
consent, found about 1000 M-80s, and arrested defendant.

The
government charged defendant in a four-count indictment with
manufacturing and dealing explosive materials without a
license, transporting and shipping explosive materials
without a license, being a felon in possession of explosive
materials, and storing explosive materials contrary to
regulation. In the extended proceedings that followed, I
ordered a competency evaluation, permitted defendant to
proceed pro se after he discharged his attorneys, and denied
his motion to suppress the evidence recovered from his
grandmother’s basement. Defendant ultimately entered a
conditional guilty plea to manufacturing and dealing
explosive materials without a license, reserving his right to
appeal the denial of his suppression motion.

Prior
to sentencing, the probation office prepared a pre-sentence
report (“PSR”), calculating an advisory guideline
range of 41-51 months’ imprisonment (offense level 18,
criminal history category IV). The PSR also included a
detailed discussion of defendant’s mental health
issues. (PSR ¶¶ 66, 70-72, 81-89.) At the
sentencing hearing, I adopted the facts and guideline
calculations in the PSR.

Pursuant
to the plea agreement, the government recommended 24 months
in prison, followed by three years of supervised release. On
consideration of the 18 U.S.C. § 3553(a) factors, I
imposed a sentence of time-served, which amounted to about 18
months, followed by two years of supervised release.
Defendant requested one year of supervision, but given his
prior record and treatment needs I found a longer term
necessary. As special conditions of supervised release, I
ordered defendant to participate in the cognitive
intervention program and a mental health treatment program. I
viewed the mental health treatment condition as the most
important aspect of the sentence in assisting defendant in
maintaining compliance and refraining from any future
criminal conduct. (R. 241 at 20.)

Defendant
unsuccessfully appealed the denial of his suppression motion.
He did not challenge any aspect of his sentence on direct
appeal.

(1) terminate a term of supervised release and discharge the
defendant released at any time after the expiration of one
year of supervised release, pursuant to the provisions of the
Federal Rules of Criminal Procedure relating to the
modification of probation, if it is satisfied that such
action is warranted by the conduct of the defendant released
and the interest of justice[.]

Accordingly,
in order to receive early termination, the defendant must
have completed at least one year of supervision, the
government must have been given notice and an opportunity to
be heard, and the court must find that termination is in the
interest of justice based on the defendant’s conduct
and the pertinent sentencing factors under 18 U.S.C. §
3553(a). SeeUnited States v. Medina, 17
F.Supp.2d 245, 245-46 (S.D.N.Y. 1998).

Defendant’s
supervision term began in January 2015, so he has served more
than one year, and the government has been afforded a chance
to respond. The issue is whether termination is warranted ...

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